Recusal of Clerk-Magistrates.

October 10, 1990

Opinion 90-2

Dear Clerk:

In your letter of June 25, 1990 you request an advisory opinion by this Committee on the matter of "recusing" Clerk/Magistrates and Assistant Clerk/Magistrates in show cause or magistrate's hearings when Attorney represents the defendant. The facts relevant to your inquiry are as follows: You hired Attorney about seven years ago, and she advanced through a number of positions in the office, including appointments as Clerk Pro-Tem. You state that she has had a close working relationship "with all of us and with 3 or 4 of the Court Judges." Her working hours were adjusted so that she could attend law school at night and her work inside the courtroom was encouraged as further training. You also note that you have taken vacation trips with Attorney .

After considering your request the Committee has concluded that generally the determination of questions of recusal must be made by the individual Clerk-Magistrate in each particular case. Unless specific language of a canon is implicated or unusual circumstances are present, this Committee will decline to provide a recommendation as to how a Clerk-Magistrate should exercise his or her judgment in deciding issues of disqualification.* The Committee directs your attention to Canon 4(E) of the Code of Professional Responsibility for Clerks of Court entitled "Disqualification." Note that where disqualification may be at issue, the Canon contains a procedure for disclosure on the record and written agreement of the parties which may eliminate the need for disqualification.

On making a judgment on issues of disqualification, Clerk-Magistrates may be guided by the case law which applies to judges making similar determinations. In Commonwealth v. Gogan, 389 Mass. 255, 259 the Court stated that "when faced with a question of his impartiality, a judge 'must consult first his own emotions and conscience. If he pass[es] the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this [is] "a proceeding in which his impartiality might reasonably be questioned."'"

For the reasons stated herein, we respectfully decline to provide the advice you requested.

Although beyond the scope of your inquiry to this Committee, we also note the possible application of G.L. c. 268A to Attorney .

 

 

*We also note that under Rule 3 of the Rules of the Advisory Committee on Ethical Opinions for Clerks of Court, the Committee does not render opinions on questions relating to the conduct of persons other than the requesting Clerk-Magistrate.